04/27/2010

A split 9th Circuit en banc U.S. Court of Appeals on Monday approved the largest class action in U.S. history against the nation's largest employer, Wal-Mart. The sex discrimination lawsuit was brought by six female Wal-Mart employees in 2001. Although the court reduced the size of the original class from 1.5 million to 500,000, by holding that those not employed by Wal-Mart in 2001 lacked standing, it held that the remaining employees might be eligible for back pay under a separate class action. Wal-Mart had argued that the size of the class was too large to be manageable as a class action.

In rejecting that argument, concurring Judge Susan Graber wrote, "If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members." Chief Judge Alex Kosinski said in dissent:

Maybe there'd be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority's approved class held a multitude of jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors….They have little in common but their sex and this lawsuit.

Wal-Mart's general counsel indicated after the ruling that Wal-Mart is considering an appeal to the U.S. Supreme Court.

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A split 9th Circuit en banc U.S. Court of Appeals on Monday approved the largest class action in U.S. history against the nation's largest employer, Wal-Mart. The sex discrimination lawsuit was brought by six female Wal-Mart employees in 2001. Although the court reduced the size of the original class from 1.5 million to 500,000, by holding that those not employed by Wal-Mart in 2001 lacked standing, it held that the remaining employees might be eligible for back pay under a separate class action. Wal-Mart had argued that the size of the class was too large to be manageable as a class action.

In rejecting that argument, concurring Judge Susan Graber wrote, "If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members." Chief Judge Alex Kosinski said in dissent:

Maybe there'd be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority's approved class held a multitude of jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors….They have little in common but their sex and this lawsuit.

Wal-Mart's general counsel indicated after the ruling that Wal-Mart is considering an appeal to the U.S. Supreme Court.